Google Sued Over Android Name... But Was It Actually Being Used?

from the i'm-looking...-but-not-finding dept

Fri, May 1st 2009 12:44pm — Mike Masnick

A whole bunch of people have been sending in varieties of the story that Google has been sued by a guy named Erich Specht, who holds a trademark on the term "Android Data," supposedly for Android Data Corporation, the company he apparently runs. Google recently applied for a trademark on "Android" in association with its mobile operating system, and had it rejected, due to worries over confusion with Specht's trademark. Based on that, Specht is now suing Google and pretty much anyone who's ever mentioned the possibility of partnering with Google and using the Android OS (over 40 companies are listed).

It's a bit surprising that Google wasn't more sure of the name before launching its operating system, but even then, the lawsuit (and the trademark rejection) seems odd and troubling. First... I can't seem to find any evidence online of Android Data Corporation doing anything. In order to hold a trademark, you're supposed to be using the mark in commerce. At best, I can find a parked homepage, and one random listing in a directory. It's hard to see how that's "use in commerce" though perhaps there are technology businesses out there that don't involve having a webpage. Second, it's hard to see why the trademark application was rejected. What this guy is doing (developing software and hosting websites) seems wholly unrelated to a mobile operating system, and not at all confusing. It seems quite unlikely that anyone would confuse the two at all. Chances are that Mr. Specht sees this as a chance to cash in, and get Google to pay up.

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Filed Under: android, erich specht, trademark
Companies: android data corporation, google

34 Comments

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chris (profile), 1 May 2009 @ 12:57pm

who cares? it's a chance to get money
no one knows who android data is nor do they care about it.

this guy was convinced by some ambulance chaser to sue and is hoping to get paid out of court to shut up.
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:Lobo Santo, 1 May 2009 @ 1:19pm

Re: who cares? it's a chance to get money
Man, it's a good thing the Goog believes in using payouts rather than snipers. If I was in charge of Google, this guy would just disappear. Maybe ninjas, if snipers aren't called for...
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Fabio Prudente, 1 May 2009 @ 1:38pm

didn't they search?
Should Google have googled for "android" term, before choosing it?
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Anonymous Coward, 1 May 2009 @ 1:44pm

It seems like a perfectly legitimate argument to me. If the guy has a trademark why should Google be allowed to use it? It sounds to me like Mike is catering to Google over Android simply because Android is a "little people."
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Captain Obvious, 1 May 2009 @ 1:48pm

Because in this case Google's use (regardless of the relative size of their business to the plaintiff's) doesn't infringe on the trademark?

Alternatively, DIE CORPORATE AMERICA LEECHES
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Anonymous Coward, 1 May 2009 @ 1:55pm

Re:
Captain Obvious!!

HI!!! I'm a big fan...
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Random Internet Guy, 1 May 2009 @ 2:09pm

Anybody know how to parse these TESS things?

ANDROID DATA (e-commerce):
http://tess2.uspto.gov/bin/showfield?f=doc&state=4002:vqe5gu.2.5

ANDROID (mobile os):
http://tess2.uspto.gov/bin/showfield?f=doc&state=4002:vqe5gu.2.16
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theharmonyguy, 1 May 2009 @ 2:14pm

Perhaps a little slack...
The address of the company is residential, so this is apparently a home-based business. While I'd expect a software/hosting company to have a web site, this may be a small-scale operation and thus not as easy to find online.
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Anonymous Coward, 1 May 2009 @ 2:21pm

How old is Android Data company?
I am sure the term "Android Data" was first used on Star Trek Next Generation
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Anonymous Coward, 1 May 2009 @ 2:29pm

sounds like he stole the name from star trek
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cvpunk, 1 May 2009 @ 2:32pm

Re:
huh... I never would have made the connection.
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Anonymous Coward, 1 May 2009 @ 2:34pm

More information...
Mike:

Here is something about his "company."

http://www.manta.com/coms2/dnbcompany_fsz41b

Perhaps more surprising is that he would sue at all. Most of the time the infringed party sends a cease & desist before going to the trouble of a lawsuit. The court may wonder why Mr. Specht failed to do so. Or, perhaps he did and was ignored.

In any case, there is typically little money in trademark suits. I suspect Mr. Specht may be a little disappointed with his settlement, if any.
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Anonymous Coward, 1 May 2009 @ 2:40pm

I don't think they have a claim on the mark 'android' as android has been used as part of other companies in the past, like Android Watches which has been around since 1991.
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Mike (profile), 1 May 2009 @ 2:52pm

Re:
It seems like a perfectly legitimate argument to me. If the guy has a trademark why should Google be allowed to use it?

Huh? A trademark is not a thing that you own and have complete control over. Google isn't using this guy's mark. They're using their own brand that is not at all competing with this guy.

It sounds to me like Mike is catering to Google over Android simply because Android is a "little people."

Huh? Why should I care little or big? When I write about the music industry or the telcos, people say I hate big companies.

When I write about patents or search engines people say I always support big companies.

You're wrong.
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Kevin, 1 May 2009 @ 3:47pm

Name Confusion
It seems quite unlikely that anyone would confuse the two at all.

This is not at all the case. Android Watches is part of an entirely different industry. However, I can see my mother, or anyone who isn't involved in the tech industry, dealing with Android Data Corporation, and saying "Hey, aren't you the guys who make those mobile phones." It's information technology, and so it's the same industry, as far as trademarks are concerned.
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Scott Gardner (profile), 1 May 2009 @ 4:03pm

Different Industries
Trademark cases can get a little weird sometimes when it comes to determining whether or not two companies are in related industries. I remember years ago when a snow-ski manufacturer was refused the right to name one of their models "Quattro" because Audi complained. The court ruled that both the automobile and the snow ski could be considered "sport vehicles" and determined that confusion could arise. The ruling was even stranger for the fact that "quattro" is simply the Italian number for "four", so I'm surprised Audi was able to lay claim to it in the first place.
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another mike, 1 May 2009 @ 4:07pm

Re: Name Confusion
I think if Android Data didn't release the Android operating system, even I might be a bit confused. I know my grandparents would never get the distinction.
That said I see the entire case boiling down to how much is Specht using his trademark? It seems to land somewhere between "not at all" and "paying an ambulance-chaser's commission."
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Stranger..., 1 May 2009 @ 4:20pm

What about these?
http://www.manta.com/mb?search=Android

Seems to be more Androids around, why is this guy special?
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bigpicture, 1 May 2009 @ 4:57pm

Re: Android
Google did not create the name "Android" Google bought a company that was producing a software product named "Android", probably way before this other party registered. Just another greedy opportunist, MSII.
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Mechwarrior, 2 May 2009 @ 5:15am

Re:
If a guy has a trademark, but isn't using it for any commercial use, then its not enforceable. Come on, why are these Lawyer trolls on this site?
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Anand, 2 May 2009 @ 5:24am

"I can't seem to find any evidence online of Android Data Corporation doing anything. In order to hold a trademark, you're supposed to be using the mark in commerce. At best, I can find a parked homepage"

Blame it on the SEO. Thanks to an overwhelming discussion over Google's Android, it is very unlikely that other 'android' discussions ever appear on the top 1000 results at least.

How many times have you found a link to the 'Java coffee beans' when you google "Java"
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PaulT (profile), 2 May 2009 @ 5:50am

Android was the name of a decent and underrated Klaus Kinski sci-fi movie made in 1982. I rather enjoyed it and I wish it was more recognised.

My point? None really. Android is a generic name first coined (according to Wikipedia) in 1270 and has no place being the subject of a lawsuit. It's money grabbing at its most blatant - funny how there were no complaint when the name was announced in 2007, only when Google started making money from it.
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Wolfy, 2 May 2009 @ 6:24am

It'll get to the point where so much of the language will be copyrighted, that you won't be able to publish a single paragraph without getting sued by a herd of lawyers!
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David Bloom, 2 May 2009 @ 11:47am

android trademark
Google should just abandon the mark and not pay this guy anything.

actually, this presents a great op for Google to rebrand the platform - call it gPhone or gMobile

with Google and all the 3G and 4G, this would be a killer name --- let Android go bye bye. Get Gphone or GMobile
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Frank, 2 May 2009 @ 2:18pm

Which of the following is his trademark:
1. Android?
2. Data?
3. Android Data?
4. All of the above?
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Dan Houser, 2 May 2009 @ 4:47pm

Android Data
Ummm... yeah. So? I've been using a company name for many years, and don't have a web page. I'm sure that there are TONS of consulting companies of 1-3 people without a web page.

To infer that it's not in use just in commerce just because you can't find it on the Internet has a ton of holes in it, and certainly no relevance under USPTO trademark law. Think about all the organizations in the phone book that don't have web sites.

I'd say that, provided he's actually using it in commerce, and a single business card handed out would be "use", then Google has no more rights to Android Data than I would to "Google Consulting" for my consulting business.
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Rob, 3 May 2009 @ 8:49am

Re: Android Data
If he is using "Android Data" I could see the point. But isn't Google using "Android OS"?
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DT, 3 May 2009 @ 11:34am

Android data
Trademark law a funny thing. In the U.S. especially. One does not even need to apply for the mark but have commerce around a name and thus effectively squat on the rights to a mark. BUT - and this is the big but... This guy applied for the mark and GOT IT. Google applied 2007 and was DENIED. Google proceeded anyway.

Second point - this guy could dissolve the business, go bankrupt, sell the busines (excluding the mark) and guess what? He still owns the mark and has all rights to it in whatever categories he registered it in. Software being the primary one for sure - and nobody can argue that Android OS is not a software.

He wins. Google loses as do all of the other 39 companies.

Rename Android. And a very amateur move by Google.
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Matt, 3 May 2009 @ 10:25pm

DON'T DO IT!!!!!
I heard if you type "google" into Google... the internet blows up!
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Timo, 4 May 2009 @ 2:30am

"Trademark law a funny thing. In the U.S. especially. One does not even need to apply for the mark but have commerce around a name and thus effectively squat on the rights to a mark. BUT - and this is the big but... This guy applied for the mark and GOT IT. Google applied 2007 and was DENIED. Google proceeded anyway."

I just did a search on the TESS database and got 51 matches with the word 'android'. This was anyway the only one that went into the same gategory. The first use was 01/01/1999 and if anyone remembers that time, having a website was not that important on those days as it is now. So companies without a website may still exist and they may do business, as astonishing it would be.
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jeadly (profile), 4 May 2009 @ 7:55am

Re: wolfy
I own the term "herd of lawyers", that'll be two million dollars please.
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Anonymous Coward, 4 May 2009 @ 9:50am

why should people be allowed to trademark "android", Ars Techinica has an article saying that "android" was the major part of the name since "data" could not be trademarked, but why would the USPTO grant a trademark for another common word like "Android"? I'll tell you why, because they make money every time they grant a patent or trade-mark.
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hegemon13, 4 May 2009 @ 11:18am

Re:
"why would the USPTO grant a trademark for another common word like "Android"?"

Good question.

Same reason they granted a patent on the word "Runza," used in the market to describe a...runza, which was the proper name for a cabbage-and-beef, pouch-like sandwich. That name had been in use for that sandwich since the 1800s. Runza Corp got the trademark, and proceeded to sue every church with runzas at their bake sale, the public schools for having it on their lunch menu, etc.

The trademark office makes mistakes. However, they will allow common words to be trademarked as part of a phrase or in a certain usage. You can't trademark "Tahoe" as a word and then sue the state of Nevada, but you can trademark it's use in referring to a vehicle. You can't trademark "burger" when referring to a hamburger. But, you could trademark it when referring to a mobile phone, and no one else could release another mobile phone called the "Burger."

"I'll tell you why, because they make money every time they grant a patent or trade-mark."

Bad answer. It is a non-profit, taxpayer-funded government office. The application fee is not refunded if the mark is denied. They make no more money whether it is allowed or denied.
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James Kindling, 6 May 2009 @ 9:44am

This is legitimate
Trademark infringment is what Google did. Now certainly 100Mil is high, but nonetheless, this is a travesty - and google stomps over people ignoring the law - this is a way a LOT of companies operate. And this is the problem with much of our society - we steal from each other, then ask for forgiveness.

This guy deserves the respect - it clearly is a business that is software based - the filing sindicate it - and Google's Android is software. Seems cut and dry from this perspective. If Google made a Car and called Android, then there wouldn't be overlap... unless the car ran on software called "Android"... the vicious circle - bottom line - google made a big mistake.
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